Attorney Laura E.B. Lombardi for the appellee, the State of New Hampshire

Issues Presented:

1. Whether by asking the police to keep an eye on his house while he was away, the
owner also gave his "implied consent" to the police to enter the home if
they saw something suspicious.

2. Whether the defendant, when he was questioned by police, was "in custody"
and therefore, should have been advised of his right to remain silent under Miranda v.
Arizona, 384 U.S. 436 (1966), when he answered questions about drugs in the house

Statement of the Case:

A Concord resident asked the police to watch his house while he was in Greece. Police
found the garage open and back door unlocked. When they entered the house, they found the
defendant, the owners grandson, asleep on the couch. When they asked for an ID, the
defendant produced a passport and two baggies of white powder fell out. After the police
asked the defendant if there was "anything else in the house," the defendant led
them to an upstairs bedroom, which he indicated was his, where they found marijuana under
the mattress and more baggies of white powder on the nightstand.

Procedural History:

Prior to trial, the defendant moved to suppress the evidence about drugs found in the
upstairs bedroom and statements he had made about the location of the drugs, arguing that
he was in police custody at the time and, therefore, should have been advised of his right
to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966). The trial court
denied the motion to suppress.

At trial, the resident denied that he gave the police permission to enter the house in
his absence. Rather, he anticipated that if there was a problem, the police would call one
of his children or a neighbor, whose phone numbers he had provided.

The defendant was subsequently convicted of three counts of possession of controlled
drugs. On appeal, he argues that the trial court erred in ruling that the resident gave
the police his implied consent to enter his home while he was away on vacation, since the
owner did not tell the police that they could enter his home and did not provide them with
a key.

Additionally, because a reasonable person in the defendants position would have
understood that he was not free to leave once the police seized the drugs that fell from
his passport, the defendant asserts that he was in custody at the time and should have
been advised of his Miranda rights when he led the police to the drugs in the
upstairs bedroom.

In response, the State argues that by asking the police to watch his house during his
absence, the homeowner necessarily included consent to enter the home if the police
suspected that a crime had been, or was being, committed. Additionally, the State asserts
that the defendant was not entitled to Miranda warnings, where he was in familiar
surroundings, the officers did not physically restrain him and his interaction with the
police was relatively brief and non-confrontational.

Case #2

PETITION OF WMUR CHANNEL 9 & a., No. 2002-0181

BRODERICK, J., DISQUALIFIED

Attorney James P. Bassett for the appellants, WMUR Channel 9, The Boston Globe and the
New Hampshire Association of Broadcasters; Attorney Kathleen A. Kirby, prohacvice, for the Television News Directors Association and the Reporters Committee for
the Freedom of the Press, amicus

Associate Attorney General Kelly A. Ayotte for the appellee, the State of New Hampshire

Attorney Richard C. Guerriero, Jr., for the New Hampshire Public Defender, amicus

Issues presented:

Whether blanket ban on still photography and audio and video recording of court
proceedings is constitutional

Statement of the Case:

In January 2001, Half and Susanne Zantop, both professors at Dartmouth College in
Hanover, were murdered in their home. The murders, investigation and subsequent arrest of
two Vermont teenagers, Robert Tulloch and his best friend, generated intense media
attention.

Members of the press originally filed this petition seeking to prevent the trial judge
in Tullochs trial from enforcing his long-standing blanket ban on still photography
and audio and video recording of courtroom proceedings. Rather than proceeding to trial,
however, Tulloch agreed to plead guilty to the murders. At the request of the petitioners,
the supreme court issued an emergency order directing the trial court to allow media
access at Tullochs guilty plea hearing. The justices also agreed to address the
underlying issues presented in the original petition about whether still photographs,
video and audio recording should be allowed at court proceedings.

Procedural History:

The petition presents three issues:

(1) Whether the trial court erred when it ruled that the press had no constitutionally
protected interest in utilizing still photography or audio/video recording equipment to
report on pretrial, trial and post-trial proceedings;

(2) Whether the trial court articulated an improper standard of proof in requiring that
the petitioners "guarantee" or "conclusively establish" that neither
the trial participants nor the jurors would be affected by the presence of still cameras
or audio or video equipment in the courtroom; and

(3) Whether the trial court erred and exercised unsustainable discretion when it
applied its long-standing ban without undertaking a fact-specific consideration of the
characteristics or impact of the three means of reporting proposed by the petitioners and
when it made the finding that trial participants and the jury would be adversely affected
by such reporting when there was no evidence in the record to support such a finding.

The State responds that neither the State Constitution, common law nor the First
Amendment create a right to electronically record, photograph or televise criminal trials.
In addition, the State asserts that the trial judge, in the sound exercise of his or her
discretion, should determine whether access to electronic media should be permitted.